{"id":101171,"date":"2024-04-06T07:22:26","date_gmt":"2024-04-06T12:22:26","guid":{"rendered":"https:\/\/milesfortis.com\/?p=101171"},"modified":"2024-04-06T07:22:26","modified_gmt":"2024-04-06T12:22:26","slug":"101171","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=101171","title":{"rendered":""},"content":{"rendered":"

Second Amendment Roundup: A Double Shot of Oral Arguments.<\/a><\/p>\n

\n

\u201cLarge-capacity\u201d magazines and semiautomatic rifles are \u201cbearable arms\u201d in common use, no different from the handguns in Heller, but will two en banc courts agree?<\/p>\n

STEPHEN HALBROOK<\/a>\u00a0<\/span>|<\/span>\u00a0

\n

Once it decided\u00a0N.Y. State Rifle & Pistol Ass’n v. Bruen\u00a0<\/em>(2022), the Supreme Court acted on several Second Amendment cases it had been holding, granting petitions for writs of certiorari, vacating the judgments, and remanding the cases for reconsideration in light of\u00a0Bruen<\/em>. One was a challenge to California’s ban on magazines holding over ten rounds, and another was Maryland’s “assault weapon” ban.\u00a0 With sparks aplenty flying, these cases were argued en banc on March 19 and 20 before the Ninth and Fourth Circuits respectively.<\/p>\n

These cases should be decided in favor of a straightforward application of the constitutional test for addressing challenges to “arms ban” laws set forth in\u00a0District of Columbia v. Heller.<\/em><\/p>\n

Bruen\u00a0<\/em>simply made more explicit the “plain text first, and then historical analogue laws second” methodology adopted by\u00a0Heller<\/em>\u00a0when it declared that the District of Columbia’s handgun ban violated the Second Amendment. Applying that methodology,\u00a0Heller<\/em> held that arms that are in common use by Americans for lawful purposes cannot be banned.<\/p>\n

First, as a matter of plain text, Heller\u00a0<\/em>held that the Second Amendment extends, “prima facie, to\u00a0all instruments\u00a0<\/em>that constitute bearable arms.” And\u00a0Heller\u00a0<\/em>made clear that “arms” includes all “weapons.” If the instruments in question are bearable arms, the burden shifts to the government to provide a sufficient number of representative historical analogue laws (not the musings of anti-gun historians) from our early history to demonstrate that the challenged arms ban falls within the country’s tradition of firearms regulation. \u00a0In fact, the American tradition of firearms regulation is really a history of no or very limited\u00a0prohibition<\/em>\u00a0of arms.<\/strong><\/p>\n

Second,\u00a0Heller\u00a0<\/em>looked at two historical traditions that spoke to the arms ban question. At the outset, the\u00a0Heller<\/em>\u00a0Court acknowledged the history of Americans bringing their own privately-owned firearms and ammunition with them to militia musters. These protected weapons were “in common use at the time” for lawful purposes such as self-defense. The Court further found that the “in common use” test was “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'”<\/p>\n

Putting these two historical practices together, the Court held that arms that are “in common use,” and therefore not “dangerous and unusual,” cannot be banned. In other words,\u00a0Heller\u00a0<\/em>already conducted the historical analysis for arms ban cases, and it concluded that once an arm is found to be “in common use” \u2013 and therefore by definition not “dangerous and unusual” \u2013 there is no more work to be done. That arm cannot be banned, period.<\/p>\n

Because millions and millions of law-abiding Americans possess both the magazines banned by California and the rifles banned by Maryland, those bans are unconstitutional under a straightforward reading of\u00a0Heller<\/em>.<\/p>\n

Unfortunately, the en banc Fourth and Ninth Circuits appear to be poised to defy\u00a0Heller\u00a0<\/em>and hold that the California and Maryland laws are constitutional.<\/p>\n<\/div>\n

<\/p>\n

\n

In\u00a0Duncan v. Bonta<\/em>, the Ninth Circuit after the\u00a0Bruen\u00a0<\/em>remand sent the case back down to the Southern District of California, where Judge Roger T. Benitez\u00a0found<\/a>\u00a0that the magazine ban violates the Second Amendment.\u00a0 Instead of allowing an appeal to a three-judge panel, which is the normal process, the Ninth Circuit ordered a hearing en banc before the same judges who had upheld the ban en banc before\u00a0Bruen<\/em>.<\/p>\n

In\u00a0Bianchi v. Brown<\/em>, a Fourth Circuit panel heard arguments in December 2022.\u00a0 Before the panel could rule, a hearing en banc was ordered.<\/p>\n

In both circuits, occasionally a panel has invalidated a firearm restriction under the Second Amendment, only to be overturned by the court en banc.\u00a0 In the Ninth Circuit in particular, it seems to be an automatic rule that a favorable Second Amendment panel decision will be overturned en banc. Indeed, Judge Van Dyke\u00a0criticized<\/a>\u00a0his court for its “single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed.” A skeptic might speculate that the majorities in each court voted to skip the panel stage in order to decide the cases “right” en banc.<\/p>\n

Oral argument<\/a>\u00a0in\u00a0Duncan<\/em>\u00a0took place on March 19.\u00a0 Michael Mongan’s argument for California offered several reasons for sustaining California’s magazine ban, but none have merit. Mongan first suggested that the ban was reasonable as it placed no limit on the number of ten-round magazines or the amount of ammunition a person could use. But that is irrelevant under\u00a0Heller<\/em>, where the Court rejected the argument that D.C.’s handgun ban could be sustained because individuals in the District could still possess long guns. The question is whether magazines holding over ten rounds are in common use, and there can be no dispute that they are.<\/p>\n

Mongan then argued that a firearm with an over-ten-round magazine is not an “arm” because it will function with a ten-round magazine. It is true that it can function, but that is not the test. \u00a0\u00a0California’s ban has the effect of banning an entire category of semiautomatic firearms: those firearms (both rifles and handguns) capable of firing more than ten rounds without reloading. And California’s argument would have no logical stopping point. The same reasoning would lead to the conclusion that firearms could be limited to a single shot.<\/p>\n

It was next suggested that numerosity cannot be the test because there are 700,000 registered machine guns in the country, and\u00a0Heller\u00a0<\/em>suggested that machine guns can be banned. But the 700,000 number is inflated. As the Fifth Circuit explained in\u00a0Hollis v. Lynch<\/a><\/em>, only about 176,000 of those are eligible to be registered to civilians, with the rest being possessed by state and local law enforcement agencies or federally-licensed firearm dealers (FFLs). Regardless, 176,000 is not only below the 200,000 stun guns \u00a0found to be “in common use” in Justice Alito’s concurrence in\u00a0Caetano v. Massachusetts<\/em>, it is also a far cry from the tens if not hundreds of millions of magazines over ten rounds owned by Americans.<\/p>\n

After Mongan concluded, Erin Murphy argued for the\u00a0Duncan\u00a0<\/em>plaintiffs. She was asked whether “use” for purposes of common use requires the actual firing of a firearm in self-defense. The answer clearly is no, for two reasons. First,\u00a0Heller\u00a0<\/em>equated\u00a0use\u00a0<\/em>and\u00a0possession\u00a0<\/em>in this context, explaining that a weapon may be unprotected if it is “not typically\u00a0possessed\u00a0<\/em>by law-abiding citizens for lawful purposes.” Second, as the same quote demonstrates, arms are protected if they are commonly possessed for\u00a0any\u00a0<\/em>lawful purpose, not just self-defense.<\/p>\n

But aren’t “large capacity” magazines in common use because manufacturers push them onto the market?\u00a0 The answer is that no one forces consumers to buy them.\u00a0 They choose them for self-defense because of their capacity, not in spite of it. If marketing dollars made all the difference in popularity, no big-budgeted Hollywood movies would flop spectacularly at the box office.\u00a0 Moreover, no one ever complained about having too much ammunition, especially when they are in a life or death fight with a thug.<\/p>\n

Finally, aren’t the subject magazines used in horrific crimes?\u00a0 Any firearm is dangerous in the hands of a criminal.\u00a0 They are not dangerous in the hands of law-abiding citizens, whom the Second Amendment protects.\u00a0 The\u00a0Heller<\/em>\u00a0Court invalidated the handgun ban despite Justice Breyer’s dissent and an amicus brief highlighting misuse of handguns in crime. Justice Breyer’s\u00a0Bruen\u00a0<\/em>dissent likewise expatiated on the use of handguns in crime, including mass shootings.<\/p>\n

As Professor Mark W. Smith explains in his article\u00a0here<\/a>,\u00a0Heller<\/em>‘s common use test cannot be escaped by pointing to technological developments or new trends in crime. Many of the same arguments were before the Court in\u00a0Heller<\/em>, which rejected them.\u00a0 In any event, the language in\u00a0Bruen\u00a0<\/em>about “dramatic technological change” and “unprecedented societal concerns” is part of a description of the methodology that\u00a0Bruen\u00a0<\/em>lays out for lower courts in deciding “other cases” not governed by\u00a0Heller<\/em>‘s “in common use” test or\u00a0Bruen<\/em>‘s principles about licensing systems.<\/p>\n

On March 20, the day after the\u00a0Duncan<\/em>\u00a0argument, the challenge to Maryland’s “assault weapon” ban in\u00a0Bianchi v. Brown\u00a0<\/em>was\u00a0argued<\/a>\u00a0before the Fourth Circuit en banc.\u00a0 Opening for the appellants, Peter Patterson was immediately bombarded by the phrases “M-16s and the like” and “weapons of war,” and the assertion that “the AR-15\u00a0is<\/em>\u00a0the M-16.”\u00a0 Against the averment that a facial attack is improper because “some guns are more dangerous than others,” he responded that all of the banned rifles are semiautomatic, just as in\u00a0Heller<\/em>\u00a0the category was all handguns.<\/p>\n

Some judges posed extreme hypotheticals. If Congress did not ban machine guns and they got popular, a state couldn’t regulate them, right?\u00a0 How about bazookas and nuclear weapons?\u00a0 The questions kept getting more farfetched \u2013 it is entirely implausible that bazookas or nuclear weapons will ever be unregulated and possessed by millions of Americans, like the AR-15.<\/p>\n

Judge Harvie Wilkinson, who in 2009\u00a0called<\/a>\u00a0Heller<\/em>\u00a0a form of “judicial activism” akin to\u00a0Roe v. Wade<\/em>, dominated much of the hearing.\u00a0 He said that he had fired an M16, that its kick was very powerful, and that very little was left of the targets when hit. Judge Wilkinson’s statements are inconsistent with reality: the small-caliber 5.56\/.223 cartridge used in M-16s and AR-15s is so underpowered that it is a crime in some states to use it for deer hunting (it would quite possibly only injure and not kill the deer).\u00a0 They are supposedly much more dangerous now than the early models.\u00a0 (They still use the same cartridge.)\u00a0 “I’m not familiar with all of the [banned] weapons, but I assume the Maryland legislature was,” Judge Wilkinson opined.\u00a0 (Bad assumption.)<\/p>\n

More on point, Judge Paul Niemeyer read\u00a0Bruen<\/em>‘s holding that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,” adding that common use trumps any purported historical analogues.\u00a0 Once an item is identifiable as a bearable arm, the burden shifts to the government to show any limits.\u00a0 “If we don’t like\u00a0Bruen<\/em>,” he continued, “we shouldn’t be on the court.\u00a0 We don’t have to like it.”<\/p>\n

Next up was Robert Scott from the Maryland Attorney General’s office, who insisted on the familiar refrain that “dangerous\u00a0and<\/em>\u00a0unusual” means “dangerous\u00a0or<\/em>\u00a0unusual.”\u00a0 Asked whether he would use an AR-15 if five people were to break into his home, he responded that it “would not be well suited.”\u00a0 The AR-15 would be in a safe, and by contrast a handgun would be easy to use.<\/p>\n

Counsel’s refrain that the AR-15 is not “suitable for self-defense,” it was pointed out by one judge, ignored the step one presumption that it is a bearable arm.\u00a0 The state may regulate it only if it is dangerous and unusual.\u00a0 The burden is on the state to show that nearly thirty million such rifles are not in common use. Counsel insisted that “assault weapons” are excluded from protected “arms” in the first step.<\/p>\n

In rebuttal, Mr. Patterson analogized how all speech is presumptively protected under the First Amendment at step one, but obscenity and defamation have historically been restricted under step two.\u00a0 Judge Wilkinson interjected again at length, pointing to dramatic leaps in weapon technology over centuries, creating new dangers and new regulations.\u00a0 Neither\u00a0Heller<\/em>\u00a0nor\u00a0Bruen<\/em>, he continued, handcuffed states from restricting new lethal weapons. Of course, Judge Wilkinson’s questions seemed unconnected to either the fact that\u00a0Heller<\/em>\u00a0already decided the constitutional test for arms ban cases or that\u00a0Heller<\/em>,\u00a0Caetano<\/em>, and\u00a0Bruen\u00a0<\/em>all make clear that modern arms that did not previously exist are also protected by the Second Amendment.<\/p>\n

Counsel responded that common use keeps up with technological development.\u00a0 There is zero history of banning firearms with narrow exceptions like machine guns.\u00a0 As to semiautomatics being more accurate than machine guns, supposedly making them more dangerous, firearms may not be banned on the basis that they are accurate.<\/p>\n

But how is common use decided? Is it mere popularity?\u00a0 May a state ban a firearm as dangerous and unusual even if it is in common use?\u00a0 Counsel again pushed back.\u00a0 A firearm in common use cannot be “unusual.”\u00a0 As to “dangerous,” rifles are used in 350 murders per year, handguns are used in 6500 murders per year, and yet those “dangerousness” figures do not support a handgun ban.<\/p>\n

In both the\u00a0Duncan<\/em>\u00a0and\u00a0Bianchi\u00a0<\/em>arguments, one can see a uniform pattern of arguments in support of upholding the respective bans on magazines holding over ten rounds and semiautomatic rifles with certain features.\u00a0 First, what are undeniably “bearable arms” because they are arms that may be borne by a person for offense or defense are somehow not “arms” under the Second Amendment because they are not “suitable” for self-defense and are “weapons of war.”<\/p>\n

Second, “common use” cannot mean literal common use, and arms may nonetheless be banned because they are “dangerous and unusual.”\u00a0 “Common” is apparently not the opposite of “unusual.”<\/p>\n

Third, commonly-possessed arms may be banned based on supposed historical analogues as far-fetched as Henry VIII’s ban on crossbows, 19th century restrictions on carrying Bowie knives concealed, and laws on the setting of trap guns that fire when the owner is not even present.\u00a0 (No matter that\u00a0Bruen<\/em>\u00a0recognized protection of “weapons ‘in common use’\u00a0today<\/em>\u2026.”). And most of those were regulations on the “use” of these weapons and were not “arm bans” of the sort imposed by California and Maryland.<\/p>\n

Before\u00a0Heller<\/em>, some courts appealed to the “collective rights” theory to deny Second Amendment rights to any individual human being.\u00a0 After\u00a0Heller<\/em>\u00a0trounced that make-believe theory and held arms in common use to be protected, most courts conceded that the subject magazines and firearms are in common use, but added what\u00a0Bruen<\/em>\u00a0called “one step too many” \u2013 watered-down intermediate scrutiny, under which the state always won.\u00a0 Painted into a corner, what’s left now to uphold bans on common arms, but to claim that these arms are not arms?<\/p>\n

When the Supreme Court says “check-mate,” the losing chess players invariably try to invent new rules under which it was not check-mate at all.\u00a0 What Article III of the Constitution calls “inferior courts” will continue playing the game until reined in again by the Supreme Court.\u00a0 As to arms in common use,\u00a0Heller<\/em>\u00a0was Act One, and\u00a0Bruen<\/em> was Act Two.\u00a0 Stay tuned for Act Three.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Second Amendment Roundup: A Double Shot of Oral Arguments. \u201cLarge-capacity\u201d magazines and semiautomatic rifles are \u201cbearable arms\u201d in common use, no different from the handguns in Heller, but will two en banc courts agree? STEPHEN HALBROOK\u00a0|\u00a04.3.2024 10:01 PM Once it decided\u00a0N.Y. State Rifle & Pistol Ass’n v. Bruen\u00a0(2022), the Supreme Court acted on several Second … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,8],"tags":[],"class_list":["post-101171","post","type-post","status-publish","format-standard","hentry","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/101171","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=101171"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/101171\/revisions"}],"predecessor-version":[{"id":101172,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/101171\/revisions\/101172"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=101171"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=101171"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=101171"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}